Twists and turns on the road to triumph: the decriminalization of same-sex sexual conduct in India

Twists and turns on the road to triumph: the decriminalization of same-sex sexual conduct in India

After a long legal battle marked by ups and downs, the Supreme Court of India recently legalized homosexuality. Monumental, because it had to overturn a colonial-era law, which had long served as a cudgel to perpetuate homophobic attitudes in India.

On 6 September of this year, the Supreme Court of India took a decisive step in promoting the rights of gay men and women in India by decriminalizing same-sex sexual acts between consenting adults in the case Navtej Singh Johar v. Union of India (Johar). This judgment concludes a decades-long debate between lower and higher courts on this issue within the Indian judiciary.

At the heart of the debate lies Section 377 of the Indian Penal Code, a relic from colonial times that classifies same-sex sexual conduct as a crime ‘against the order of nature’, punishable with life imprisonment. Though rarely invoked, Section 377 perpetuated homophobic attitudes in India, leading to discrimination, violence and other types of mistreatment against members of the LGBT+ community. It generated and fostered an environment in which state and non-state actors not only failed to protect sexual minorities, but actually contributed to further violation of their rights.

The long road to justice

The constitutionality of Section 377 was first challenged in 2001, when an Indian HIV/AIDS activist group (the ‘Naz Foundation’) filed a petition before the High Court of Delhi. Its hope of having the archaic law repealed was, however, shattered when the High Court held that the petitioners had no locus standi in the matter since no LGBT+ people were directly shown as victims in the proceedings. The Court consequently refused to examine the legality of the law.

The Naz Foundation appealed against this decision to the Supreme Court, which found that the Foundation did have standing and subsequently sent the case back to the High Court of Delhi for reconsideration on merit. Even though it took its time, the High Court eventually (in 2009) delivered a historical judgment in the case of Naz Foundation v. Govt. of NCT of Delhi (Naz), when it concluded that classifying same-sex relations between adults as a crime infringed upon constitutional rights of citizens.

This victory was short-lived, however, since in December 2013 the Supreme Court overturned the Naz case in Suresh Kumar Koushal v. Naz Foundation (Koushal) and reinstated Section 377, reinforcing the punishment of same-sex sexual conduct once again. The same Court, albeit in a different formation, reconsidered and recanted this 2013 judgment in the recent case of Johar. In reaching its decision, the Court not only rendered Section 377 unconstitutional but even expressed an apology to the LGBT+ community in India. The Supreme Court’s change of heart raises the question what has changed since Koushal that has brought about such a complete reversal of its earlier view?

Substantive aspects of the Koushal case

Let us first turn to the Court’s reasons for overturning the judgment in the Naz case in Koushal. Its first and main argument for overturning Naz was the alleged lack of ‘judicial restraint’ exercised by the High Court of Delhi. The Supreme Court claimed that the High Court had failed to give proper adherence to the presumption of constitutionality, which ensures that changes in national law are enacted primarily by Parliament, not by courts. It was of the opinion that the High Court, by repealing Section 377, had given insufficient deference to the separation of powers and had appropriated the role as legislator. The Court consequently labelled the High Court’s decision as ‘legally unsustainable’.

It further argued that the High Court relied too heavily on international precedent while failing to consider adequately whether such precedent should apply to the Indian context. According to the court, the Indian society was not ready for homosexuality and since the LGBT+ community only comprised a ‘miniscule minority’ of the Indian population, the rights of the majority had to prevail.

Finally, the Court observed that the abuse resulting from Section 377 against LGBT+s, such as harassment, blackmail, extortion and discrimination, did not affect the constitutionality of the law. It stated that legislation could not be deemed unconstitutional simply because it was misused.

Substantive elements of the Johar case

Moving on to Johar, the Supreme Court’s radical new stance has to be reviewed. At first glance, the Court's shift in attitude may indeed appear sudden. However, a closer look reveals that, in the five years leading up to the Johar case, the Court’s judicial discourse had already started to change favourably with respect to LGBT+s. Pertinent examples of this include the case of NALSA v. Union of India (2014), in which the Supreme Court held that transgender persons constitute ‘a third gender’ to whom fundamental rights apply in the same manner as to male and female, as well as the case of Justice K. S. Puttaswamy v. Union Of India (2017), in which it declared that sexual orientation should be protected as a fundamental right under the Constitution of India.

Against this background, the Court decided to declare void Section 377 of the Indian Penal Code. In reaching this decision, it particularly refuted the ‘miniscule minority’ argument on which the Koushal case had been predominantly based. Underscoring the Constitution’s commitment to the individual, it held that the prevailing moral norms regarding same-sex sexual conduct could not be used to overturn a person’s fundamental rights. It thus established that social morality cannot trump constitutional morality.

In contrast to its previous narrow approach to constitutional interpretation in Koushal, the Court now adopted a more dynamic reading of the Indian Constitution. Guided by the concept of transformative constitutionalism, it highlighted the ability of the Constitution to conform to the ‘changing needs of the times’. It abandoned the idea that a pre-constitutional law that preserves a socially no longer acceptable discrimination of a sexual minority, could rightfully be upheld in a constitutional democracy. It thereby rebuked the presumption of the constitutionality plea made in Koushal, arguing that such a presumption did simply not apply in the case at hand. Since the law had not been enacted by the Indian Parliament but had been established before the Constitution, it had never been brought in line with that Constitution.

Beyond Johar

The Johar judgment draws the curtain on the long legal battle against Section 377. It represents a first step towards guaranteeing freedom to the Indian LGBT+ community and possibly sets the ground for further change on akin issues such as same-sex marriage, adoption by same-sex couples and inheritance rights.


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